Juror Prejudices

 

 

This is a direct copy, an excerpt from the Appellant Brief, from the Arguments Section, regarding what the jurors knew, or might have known.

 

 

 

While not attempting to provide a comprehensive catalogue of all that the jurors "knew", it is important here to at least point out the most prejudicial examples of this "knowledge".

 

Mr. Steinkirchner, who is a certified public accountant, noted that he had heard some theories or gossip to the effect that there might have been some link between the murders and the fact that Linda Miracle's ex-husband was a truck driver who might have been involved in "drug runs."(3405)

Ms. Richards stated that she had learned that Linda Miracle's diary had been found and destroyed ó a fact which did not reach the newspapers until after the trial commenced. (4121-22)

Ms. Adams was aware that a neighbor had seen the Defendant carrying things out of the houses in question on the night of the murders. (footnote: To understand the prejudice here, it is important to note that the neighbor in question could not even identify the Defendant in the courtroom, where she was only a few feet from him. Instead, she identified a deputy sheriff as the Defendant.) (6543)

Mr. Lubinski was not only aware that a gun, which he believed to be the murder weapon, was found under the Defendant's house, but also spoke of the barbed wire with which the victims were bound having been located in the Defendant's car. (8015-16)  Needless to say, not only was no wire found in the Defendant's car, but there was never any barbed wire involved in the case.

Unlike the situation in Murphy v. Florida, supra, where the very fact that the crime was committed, and the trial held, in the large metropolitan area of Miami Beach, helped to minimize the potential prejudice from the heavy pretrial publicity, the small size of Mesa County only exacerbated the prejudice to the Defendant here. The prejudicial effect is manifested a number of ways among the fourteen jurors.  First, at least three of the jurors were personally acquainted with some of the (footnote:   The three are Ms. Johnson, Ms. Noel, and Mr. Lubinski.) witnesses.  Also, Linda Miracle's husband had been a client of Mr. Steinkirchner. (3404)  

Second, a number of jurors referred to the attitudes of and discussions with family, friends, and co-workers. Mr. Steinkirchner, who noted that he had linked these murders in his mind with the other unsolved Grand Junction murders, pointed out that one of his secretaries had told him that all of the adult victims in these cases had been classmates in school. (3411)  Also, many of his clients had often talked to him about this case, and "everybody had a theory" about the murders. (3403)

Ms. Richards, who stated she had no fixed opinion as to the Defendant's guilt, noted however that her family has a definite opinion that the Defendant was guilty, and she had been exposed to the family discussions. (4126, 4162)

Mr. Gonzales had had numerous discussions about the case with his co-workers over coffee. He noted that there was a general feeling in the community against the Defendant. (5442)

Ms. Noel had had many private discussions about the case and had followed the case very closely because her mother lived only a few blocks from the Defendant. (6613-14)

Mr. Simonson had also discussed the case with his friends and Mr. Lubinski, a teacher, noted that there was a strong feeling that the Defendant was guilty in the teacherís lounge. (8020)

Although all of the jurors seated stated that they either had no opinion as to the Defendant's guilt or could put any such leaning or opinion aside, it is still necessary to explore the answers given to these questions. The United States Supreme Court, in both Murphy v. Florida, supra, and Irvin v: Dowd, supra, recognized that such assurances from prospective jurors should not automatically be taken at face value, when there is evidence that pretrial publicity may have had an adverse effect on the jury panel.

The seven jurors who admitted to some leaning or opinion on the question of guilt showed varying levels of commitment to that position.  Mr. Steinkirchner stated that his only opinion of guilt sprang from the fact that the Defendant was being brought to trial.  Ms. Noel also admitted some leaning to guilt, (6598) while Ms. Arnhold and Ms. Hays both pointed out that their opinions or leanings arose from the fact, and at the time, of the Defendant's arrest. (7954-55, 7085)

Ms. Richards admitted that she experienced feelings of relief when the Defendant was arrested because she believed the guilty person had been caught. (4151-52)  And Mr. Simonson testified that he had formed an opinion that the Defendant was guilty at the time of the arrest, (7020)  that this leaning had lasted until the time of trial, and it would require some evidence to erase that leaning from his mind. (7032-33)

An excellent example of the problems inherent in picking a truly impartial jury in this case, given the publicity, the rumors and gossip, and the involvement of the community, is presented in Mr. Steinkirchner's testimony.  After being questioned by the court and stating that he held no opinion as to the Defendant's guilt, (3373)  he was questioned by defense counsel.  After explaining that he had heard a lot of rumors and that everyone he met had theories, he was again questioned about having an opinion as to guilt:

Q: Do you think that because of your line of work that the gossip or rumors that you might have experienced would have any effect upon any opinion or judgments that you, yourself, might have formed?

A: No, I really rather doubt it. There is always a possibility that the presentation of evidence, as the Judge asked me, might trigger something, but I don't seriously think it will.

Q: As you have lived in the community throughout the recent months, I take it you are stating that you have not at any time formed any opinions as to Mr. Botham's guilt, or developed any leanings toward that. Is that a fair statement or not?

A: I don't know.  That is an awful hard one to answer.  You know, I guess, as I say, I have discussed some things in part of my conversations, and I have caught myself making some assumptions, and I was kind of shocked by them, because I really didn't think I had.  And whether that was just because the general talk has been in that tenor, I really don't know.

Q: It's certainly of concern to all of us, because I would anticipate as you hear more and more about, well, the events which would form the basis of this case, there would be a greater and greater tendency for it to flag things out of your own memory and maybe trigger some of the responses you are feeling.

A: I think that's a danger.

Q: I don't know if you really answered me whether or not you think at some point you either had an opinion or a leaning.

A: I guess in my own mind I don't know whether I-have an opinion.  In attempting to analyze it as I said I have, because of the mis-speaking in one sense or other, I have been shocked by it and really it's not based on any facts or anything else.  I would say this, I am probably not as innocent as a baby at this point, and that is the only comparison I can offer you. (3405-09)

Mr. Steinkirchner, in his attempt to be as honest as possible, has provided a graphic illustration of the exact reason why the Supreme Court, in Irvin v. Dowd, supra, recognized that mere assurances of impartiality, no matter how honestly presented, cannot be taken at face value, and must be weighed with the influence of the publicity on the community as a whole.

 

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